[EL] another Ohio ruling

Wed Sep 14 06:52:45 PDT 2016

One thing I don’t understand about the majority opinion in yesterday’s NEOCH case is the distinction that the majority draws between absentee and provisional ballots for the purpose of applying Anderson-Burdick balancing to the invalidation of ballots for a voter’s clerical error in writing the voter’s birthdate or address on the envelope in which the ballot (absentee or provisional) is submitted.

The majority finds an Equal Protection violation under Anderson-Burdick for the invalidation of ABSENTEE ballots for this type of clerical error, but rejects the equivalent Equal Protection claim with respect to the invalidation of PROVISIONAL ballots for the identical type of clerical error.  This disparate disenfranchisement of comparably situated voters (by the Sixth Circuit majority) itself invites Equal Protection inquiry under a Bush v. Gore type of analysis.

What does the Sixth Circuit majority say to justify this distinction?  Not much; it doesn’t really address the comparison of absentee and provisional ballots directly, but rather just analyzes each separately in turn under its application of the Anderson-Burdick balancing test.

The majority seems to think that process of verifying provisional ballots, to make sure that the provisional voter is registered and authentic (ID matches, so that the person casting the ballot is really the person entitled to cast it) justifies disqualifying a provisional ballot if the voter accidently writes the wrong information for the voter’s birthdate or address—for example, accidently writing the current date rather than one’s birthdate.  The relevant sentence of the majority’s opinion, on page 22, is this:  “Ohio’s important interests in provisional-voter registration and identification eclipse the small burden of accurately completing the two fields—a burden that actually impacts just a few hundred voters each election, an impact wholly in their own control.”

But then the very next sentence is: “However, we agree with the district court that Ohio has made no such justification for mandating technical precision in the address and birthdate fields of the absentee-ballot identification envelope.”  Ohio’s defense was the same in both contexts: the need to make sure that the person submitting the absentee ballot was in fact registered and authentically the person in whose name the ballot is being cast.  But here the majority rejects the defense as theoretical and speculative, not grounded in actual evidence of a problem.  As the majority puts it, “some level of specificity is necessary to convert that abstraction into a definite interest for a court to weigh.”  (Id.)  But why wasn’t that point equally applicable to the same defense regarding provisional ballots?

It is as if the majority opinion believes that provisional ballots are inherently more suspicious than absentee ballots, enough so that an innocent clerical mistake is enough grounds to toss the ballot out, thereby disenfranchising the voter.  But this position makes no sense to me.  The constitutional claim in the case, as the Sixth Circuit majority itself defines it, concerns the invalidation of the ballot solely because of the clerical error regarding the birthdate—the mistaken writing of the current date, for example.  But if this is the sole reason for rejecting the provisional ballot, then the election officials already know that the provisional voter’s registration status has been confirmed, and that the provisional voter’s required ID number (driver’s license or last 4 digits of SSN) has dispelled doubt about the voter’s authenticity.  In this situation, there is no need to disqualify the ballot just because of the inconsequential clerical error regarding the birthdate.  As the majority acknowledges elsewhere regarding ABSENTEE ballots, the state’s justification for “requiring mail-in voters to complete the address and birthdate fields” as information that potentially aids election officials in the verification process is not an adequate justification “to reject ballots containing technical errors” when those errors do not defeat the ability of officials to verify the ballot in question (slip op. at 24).  The very same point applies equally to provisional ballots, but the Sixth Circuit majority just seemed to miss it in that context.

There is some language in the Sixth Circuit’s majority opinion that suggests that it might make a difference to the Anderson-Burdick balancing that numerically fewer provisional ballots are rejected each election because of these clerical errors than absentee ballots 620 provisional ballots,  compared to 1712 absentee ballots, in 2014 & 2015 (slip op. at 21).  But that numerical difference would seem irrelevant under the way that the Crawford “plurality” -- the Stevens opinion-- understood Anderson-Burdick balancing (in contrast to Justice Scalia’s alternative approach in his Crawford concurrence), and the Sixth Circuit majority acknowledges the Stevens opinion in Crawford to be “controlling”.  In this regard, the Sixth Circuit majority refers to the Anderson-Burdick claims before it as “facial challenge[s]” (slip op. at  21), but I had understood the Anderson-Burdick claims in this case – in contrast to Crawford itself – to be as-applied challenges on behalf of the subset of voters represented by the plaintiffs (the homeless and other specifically disadvantaged groups).

This leads me to wonder whether, even after yesterday’s decision, there is still the possibility of a valid AS-APPLIED challenge on behalf of any provisional voter whose ballot is rejected solely because of a clerical error regarding a birthdate or address—and that the upshot of the decision is that the equivalent rule regarding absentee ballots is facially invalid, and thus absentee voters do not need to seek an as-applied remedy for this kind of disenfranchisement, whereas provisional voters still do.  Even so, I still don’t understand the basis for the Sixth Circuit majority’s distinguishing between absentee and provisional voters, even for purposes of the kind of claims that the majority characterized as equivalent “facial challenge[s].”  But at least that would not rule out the possibility of protecting provisional voters from disenfranchisement solely because of a clerical error that the Sixth Circuit majority itself defines as inconsequential to verifying the voter’s eligibility and identity.

Any help from anyone in understanding the Sixth Circuit’s distinction between provisional and absentee voters in this regard would be greatly appreciated!  Thanks much, Ned

[The Ohio State University]
Edward B. Foley
Director, Election Law @ Moritz
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law
Moritz College of Law
614-292-4288

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, September 13, 2016 6:28 PM
To: Election Law Listserv
Subject: [EL] another Ohio ruling

Another OH Voting Rights Loss: Divided 6th Cir. Mostly Rejects Order Easing Absentee/Provisional Balloting<http://electionlawblog.org/?p=86484>
Posted on September 13, 2016 3:24 pm<http://electionlawblog.org/?p=86484> by Rick Hasen<http://electionlawblog.org/?author=3>

Over an impassioned dissent recounting the disparate racial effects of its decision, a 6th Circuit panel has voted 2-1 to mostly reject <https://t.co/WKFwktAUh4> a district court order rejecting some Ohio voting rules which make it harder for voters voting absentee or with provisional ballots. The dissent accuses the majority of condoning racist laws that make it harder for people of color to vote.

No one paying attention will fail to notice that the majority opinion was written by two white, Republican appointed judges, while the dissent was written by 94 year-old Damon Keith, an African-American judge appointed by Jimmy Carter.

I expect that we will see a petition for review before the entire Sixth Circuit in this case, which is a more likely path to reversal than before a 4-4 Supreme Court.

From Judge Boggs’ majority opinion:

In 2014, Ohio enacted Senate Bills 205 and 216. Among other changes to Ohio election law, they (1) required county boards of elections to reject the ballots of absentee voters and provisional voters whose identification envelopes or affirmation forms, respectively, contain an address or birthdate that does not perfectly match voting records; (2) reduced the number of post-election days for absentee voters to cure identification-envelope errors, and provisional voters to present valid identification, from ten to seven; and (3) limited the ways in which poll workers can assist in-person voters. The district court held that all three provisions impose an undue burden on the right to vote and disparately impact minority voters.

We affirm the plaintiffs’ undue-burden claim only as it relates to the requirement imposed by Senate Bill 205 that in-person and mail-in absentee voters complete the address and birthdate fields on the identification envelope with technical precision. We reverse the district court’s finding that the other provisions create an undue burden. We also reverse the district court’s finding that the provisions disparately impact minority voters. We affirm the district court’s other holdings.

And near the end of the majority opinion there’s this:

We deeply respect the dissent’s recounting of important parts of the racial history of our country and the struggle for voting rights, and we agree that this history may always be appropriately borne in mind. However, that history does not without more determine the outcome of today’s litigation over voting practices and methods. The legal standards we must follow are set out in the cases we discuss concerning the standards embodied in the Fourteenth Amendment and Section 2 of the Voting Rights Act. With respect to the dissent’s discussion regarding factual findings, this opinion does not quarrel with the district court over its recitation of the record or of any credibility determinations made by the district court. Rather, our holding is that the district court’s legal conclusions from that record are in certain parts erroneous, as set forth in this opinion, and in light of other parts of the record that the court did not consider.

The lengthy dissent by Judge Keith begins:

Democracies die behind closed doors. Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002). By denying the most vulnerable the right to vote, the Majority shuts minorities out of our political process. Rather than honor the men and women whose murdered lives opened the doors of our democracy and secured our right to vote, the Majority has abandoned this court’s standard of review in order to conceal the votes of the most defenseless behind the dangerous veneers of factual findings lacking support and legal standards lacking precedent. I am deeply saddened and distraught by the court’s deliberate decision to reverse the progress of history. I dissent.

In complete abandonment of the clearly erroneous standard of review, the Majority displaces several of the district court’s well-reasoned and supported factual findings. The Majority’s decision to gut the factual findings of the district court and to advance legal standards without precedent in order to shut the most vulnerable out of the political process must be subjected to the natural antiseptic of sunlight. The unfettered right to vote is the bedrock of a free and democratic society—without it, such a society cannot stand. This right is fundamental. It is the most valuable right a person possesses, because without it, all other rights are meaningless. As history has shown time and time again, laymen and jurists alike have actively  worked to deny the right to vote to minorities, in both obvious and obscure ways. The Voting Rights Act (“VRA”),1 sought to right this wrong by allowing all citizens—unrestrained—to exercise their right to vote regardless of race. While the VRA and Equal Protection Clause sought to bring this nation forward, closer to a society free of racial discrimination, today the Majority’s opinion takes us several steps back. Because the Majority has completely ignored the applicable standard of review and has instead engaged in its own fact finding and reweighing of the evidence in complete disregard for the clearly erroneous standard of review, because the Majority has created a legal standard in contradiction to existing case law based on a concurring opinion and dictum, and because the Majority has dishonored the struggle for the right of the most vulnerable to vote, I dissent. I would instead affirm the district court in full.
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Posted in absentee ballots<http://electionlawblog.org/?cat=53>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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